IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
SEKONDI - A.D 2018
THE REPUBLIC - (Plaintiff)
THE DISTRICT COURT, SEKONDI - (Respondent) EXPARTE: MARTIN OFFEI -(Applicant) SALLY OFFEI - (Interested Party)
DATE: 9 TH APRIL, 2018
SUIT NO: E9/28/18
JUDGES: P. BRIGHT MENSAH
DAVID OWUSU-TACHIE FOR BEN ACKAAH-GYASI FOR THE APPLICANT INTERESTED PARTY IN PERSON
NO LEGAL REPRESENTATION FOR AND ON BEHALF OF RESPONDENT COURT
The Applicant in this present case moves the court for:
“… Order for Judicial Review by way of Certiorari to quash the judgment of the District Court, Sekondi”[ given on 29/09/17],
as per the accompanying affidavit and for any further order(s) as this court may consider fit.
The present application, according to the motion paper, is brought under Order 55 r 1(a) & 4(2) of Rules, 2004 (C I 47) invoking the supervisory jurisdiction of this court. By rule 1(a) of Order 55, an Applicant may make an application for judicial review to the High Court in the nature of an Order of Certiorari, among other reliefs. An affidavit supports the motion. The supporting affidavit sets out the grounds for the application, the reliefs sought, the name and description of the applicant and his address. The applicant shall also supply the full name and address of the person directly affected by the application.
Before proceeding further, I want to place it on record that when the case was called in this court for the first time on 22/02/2018, the Interested Party though served with the processes to appear in court, she was absent. However, Hajia Asana Sooba represented her, who told the court that the Interested Party has been delivered of her baby born to another man. Consequently, the case was adjourned to 20/03/2018 but on the ground that the Interested Party was short-served.
The case of the Applicant:
The thrust of the application as may be gleaned from the affidavit in support of the motion is that the Interested Party and the Applicant were once married under the customary law. The said marriage was on 21/12/2013 converted to an ordinance marriage under CAP 127. It is common ground that the Interested Party subsequently instituted a divorce petition against the applicant at the Sekondi District Court and the said court gave judgment in her favour on 29/09/2017.As relayed in the judgment of the District Court, the parties had their customary marriage converted into an ordinance marriage on December 21, 2013 at the Upper Room Assemblies of God Church, Kwesimintsim, Takoradi.
There are 2 issues of the marriage. The Petitioner had asked for dissolution of the marriage on ground of unreasonable behavior on the part of the Respondent. She also asked for custody of the 2 issues of the marriage as well as financial provision. It is the case of the Applicant that the Respondent court lacked jurisdiction to hear and determine the petition relating to an ordinance marriage. The Applicant has averred in paragraph 5 of his supporting affidavit that that order of the court is null and void, having no legal effect. The applicant therefore prays this court to quash the judgment of the Sekondi District Court.
Arguments of Counsel in support of application:
Learned Counsel for the Applicant in his statement of case did refer the court to the position of the law on the general jurisdiction of the District Court that purports to give the court jurisdiction in matrimonial causes. He first referred to S. 47(1)(f) of the Courts Act, 1993 (Act 459) and next, to the amendment to that law as provided for in S.47(1)(f) of the Courts [Amendment] Act, 2002 (Act 620). Counsel in elaborating on the law and the distinction between the old and the new provisions of the 2 statutes, argued that whereas the former provision sought to restrict the jurisdiction of the District Court relating to divorce petition to customary law marriages, the later amendment seeks to give the court jurisdiction to determine matrimonial causes whether under the customary law or the marriage ordinance.
He continued that notwithstanding that S.47(1)(f) of the Courts [Amendment] Act, 2002 (Act 620) gives jurisdiction to the District Court, the Matrimonial Causes Act, 1971 (Act 367) gives exclusive jurisdiction for the determination of causes under the Act to the High Court and the Circuit Court only. In support he referred to Ss1(1) and S. 43 of Act 367. He submitted that the combined effect of Ss. 1(1) and 43 is that the District Court lacks jurisdiction in matrimonial causes brought under Act 367. In articulating his views further, learned Counsel emphasized the rule of interpretation which is to the effect that general legislation must always give way to specific legislation, generalia specialibus non derogant. He concluded that insofar as the specific legislation gave exclusive jurisdiction to the High Court and the Circuit Court the net effect is that the Sekondi District Court lacked jurisdiction to entertain the matter in question. It is on this sole ground that Counsel has strongly urged on this court to quash the judgment in contention, Exhibit A.
Analysis of Counsel’s arguments and opinion of the court:
I now proceed to review and consider the arguments of Counsel in relation to the merits or otherwise of the instant application. It is noted that both the Respondent court and the Interested Party were served with all the processes. Yet, for unexplained reason neither party particularly the Interested Party, filed any process indicating their opposition to the application. That, notwithstanding, the Applicant is enjoined by law to satisfy this court that he is entitled to the remedy he seeks.
The scope of Judicial Review
To begin with, the power of the High Court to exercise that supervisory jurisdiction to issue Prerogative Writs is provided for in Article 141 of the 1992 Republican Constitution of Ghana. That provision of the law enacts:
“141. The High Court shall have supervisory jurisdiction over all lower Courts and any lower adjudicating authority, and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power.”
The prerogative orders contained in Article 141have been held to be the mechanism whereby administrative law principles are applied.
Writ of Certiorari: Scope and Ambit
Before proceeding to consider in detail, the merits or otherwise of this instant application it is appropriate to say that Judicial review in the nature of Certiorari is the procedure by which the superior court is able, in certain cases, to review the legality or otherwise, of decisions or actions by some state institutions including lower courts and adjudicating bodies which decisions/orders affect the rights of the members of the general public. The law is so wide to cover not only judicial acts but also administrative duties of public institutions. This system of judicial review, therefore, allows the courts to interfere in the machinery of public administration where circumstances warrant it.
Wade & Forsyth has defined Certiorari in the following terms:
“………[It] is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed. That is to say, it is declared completely invalid, so that no one need respect it. The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly admin- istration of justice, but it is a private complaint which sets the Crown in motion.”
Perimeters for the High Court to issue an Order of Certiorari:
It has been said that the writ of certiorari for quashing the offending order or proceedings is directed against a record. But as the record can be brought up only through human agency, it is ordinarily issued to the person or authority whose decision is to be reviewed. The limit of the jurisdiction of the High Court to issue Certiorari has been considered by the Indian Supreme Court sitting as Constitution Court. The court laid down 4 propositions as perimeters for considering an application for an order of Certiorari to issue. These are:
“(1) Certiorari will be issued for correcting errors of jurisdiction;
(2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;
(3) The court issuing the writ of Certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they are erroneous;
(4) An error in the decision or determination itself may also be amenable to a writ of Certiorari if it is a manifest error apparent on the face of the proceedings eg., when it is based on clear ignorance or disregard for the the provisions of law. In other words, it is a patent error which can be corrected by Certiorari but not a mere wrong decision.”
Ghana Supreme Court’s position:
From case law and the available literature our Supreme Court holds the same common law position on Certiorari as espoused by the Supreme Court of India. It is principally that there must be an error apparent on the face of the record of the adjudicating tribunal or administrative body that the High Court is called upon to quash. However, the Ghana Supreme Court has expounded the frontiers of the law further. It is that Certiorari is a discretionary remedy and that it is not always the case that Certiorari shall be granted automatically. In a recent case, the Supreme Court speaking through that distinguished and eminent jurist, Date-Baah JSC postulated as follows:-
“… Accordingly, in relation to the High Court’s supervisory
jurisdiction also even an error patent on the face of the record cannot found the invocation of that jurisdiction of the court unless it is funda- mental, substantial, material, grave or so serious as to go to the root of the matter. In sum, in addition to jurisdictional errors, only a funda- mental non-jurisdictional error of law can be the basis for the exercise of the High Court’s supervisory jurisdiction.”
It is deducible therefore that the error complained of has to be so fundamental, substantial, material, grave and or must go to jurisdiction to warrant the exercise of the supervisory jurisdiction of the High Court.
Needless to emphasize, I have subjected the arguments of Counsel to critical analysis and scrutiny. I have equally internalized the statutes cited to me. Now, for purpose of clarity it is appropriate to have regard to both pieces of legislations Counsel referred me to.
First, S.47(1)(f) of the Courts Act, 1993 (Act 459) enacted that a District Court shall within the area of its jurisdiction have civil jurisdiction in divorce and other matrimonial causes or matters and actions for paternity and custody of children [where the law applicable is exclusively customary law]. The law that however seeks to give jurisdiction in matrimonial causes other than customary law marriages to the District Court provides in S.47(1)(f) of Act 620 that the District Court shall jurisdiction in divorce and other matrimonial causes or matter and actions for paternity. Prima facie, the law now appears to give jurisdiction in matrimonial causes under the Matrimonial Causes Act, (Act 367) also to the District Court. However, it is the judgment of this court that on the principle of generalia specialbus non derogant, the exclusive jurisdiction to determine any matrimonial issue brought under the Act ie Act 367 is restricted only to the High Court and the Circuit Court. Not even the Supreme Court has original jurisdiction in the matter unless it was through the normal appeal process from either the High Court or the Circuit Court to the Court of Appeal and finally to the Supreme Court. I do, therefore, endorse the erudite submissions of learned Counsel for the Applicant that the Sekondi District Court lacked jurisdiction in the matter.
Now, the generalia specialbus non derogant maxim is to the effect that whenever there is a general enactment in a statute which if taken in its most comprehensive sense, would override a particular enactment in the same statute, the particular enactment must be operative, and the general enactment must be taken to affect only the parts of the statute to which it may properly apply. Put differently, where two provisions or enactments are in conflict with each other and one of them deals specifically with the matter in question and the other is of general application, the conflict may be avoided by applying the specific provision to the exclusion of the general one, that is to say, the specific provision prevails over the general one.
This statement of law finds support of the dictum of Bamford-Addo, JSC when the learned Justice propounded the law thus:
“… [T]he principle of law is that whenever in an enactment there appears general provisions as well as particular provisions which are contradictory, the particular provisions are to be considered as an exception to the general rule, and should be made effective despite the general provisions.
In Barclays Bank v Ghana Cable (1995-96) 1 GLR 289the Court of Appeal,[Coram: Wood, Baddoo and Afreh JJA] postulated:
“The general rule of law was that where there was a specific legislation covering any given situation, the court would not apply general provisions for the situation. Accordingly, since rule 16 of CI 13 was a general provision on the effect of transmission of the record of proceedings to the Supreme Court, but it contained no provision on what should or might be done when an applicant had failed to comply with the conditions of appeal, but rule 19 of CI 13 specifically dealt with that matter, it was rule 19 of CI 13 that applied to the application.” [emphasis mine]
The Supreme Court in restating the principle, held in an election petition in Zakaria v Nyimakan (2003-04) SCGLR 1 that here was no right of further appeal from an election petition determined by the High Court under article 99(1) of the 1992 Constitution because:
1) notwithstanding the general appellate jurisdiction of the Court of Appeal stated in article 137(1), article 99(2) had expressly provided that a person aggrieved by the determination of an election petition by the High Court under article 99(1), might appeal to the Court of Appeal. That provision had the effect of taking it, ie such an appeal out of article 131(1) jurisdiction of the Court of Appeal in respect of appeals to the Supreme Court.
2) on application of the maxim, generalia specialibus non derogant (general words do not derogate from special), the special provision set out in Article 99(2), granting the right of appeal to the Court of Appeal from the determination of the High Court for an election petition under Article .99(1), should supersede the general appellate jurisdiction of the
Supreme Court under Article 131(1)(a). [emphasis supplied]
I need to state that the Supreme Court gave other reasons for their decision in thatcase. However, the rule of law that is relevant for our present purpose is what I have stated herein. It is trite learning that jurisdiction is so fundamental an issue in every matter that even if it is not questioned by any of the parties it is crucial for a court to advert its mind to it to assure a valid outcome. See: Bimpong-Buta v General Legal Council (2003-04) SCGLR 1200 @1215,the dictum of Sophia Akuffo JSC (as she then was).
Kpegah JSC has brilliantly explained the concept, “jurisdiction” jurisprudentially as follows:-
“The concept of ‘jurisdiction’ in its esoteric and jurisprudential sense is said to be ‘a dignity which a man hath by a power to do justice in causes of complaint made before him’.
In a technical sense, when one is considering whether a properly constituted court has jurisdiction or not, one cannot resolve this issue without necessarily relating it to:
a) the parties to the dispute – ie, whether the court has jurisdiction over them;
b) the subject matter of the dispute – ie, whether it is one which falls within its jurisdiction;
c) the relief being sought – ie, whether the said court can grant the relief the Plaintiff is seeking; and
d) territorial limitation].”
See: Ghana Bar Association v Attorney-General (1996-97)1 GLR 598 @ 633-634.
It is worthy of note that the learned authors of Stroud’s Judicial Dictionary, 4th ed Vol.3 @ 1452 had explained the concept as follows:-
“In its narrow and strict sense the jurisdiction of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference to:
i) the subject matter of the issue;
ii) the persons between whom the issue is joined; or
iii) the kind of relief sought, or to any combination of those factors.”
So simply put, it is that power vested in a court of law to adjudicate cases having regard to the parties appearing before it, the subject matter in issue, the reliefs sought and the geographical or territorial area in which the court operates. And there is unbroken of judicial authorities to the effect that where jurisdiction is lacking any judgment or order emanating from there from is a nullity. See: Kumnipa II v Ayirebi (1987-88) 1 GLR 265 @ 285.
The Supreme Court speaking through Adzoe JSC has restated the principle that if a statute creating a court or the rules do not confer jurisdiction, it is not in the power of that court to assume jurisdiction. See: Koglex (No.2) v Attieh (No.2) (2003-04) SCGLR 75 @ 86.
Now, guided by these statements of law, it is apparent on the face of the record and Ido hold that the Sekondi District Court lacked jurisdiction to entertain the matrimonial cause under Cap 127 under which the parties ie the Applicant herein and the Interested Party were married. Consequently, I declare that the trial itself and the judgment emanating there from are all nullity. The judgment is completely invalid and cannot be respected. Overall, I am satisfied that the Applicant has succeeded in making a case which calls into question the void judgment and orders made by the Sekondi District Court.
These orders are brought up into this court to be quashed and are hereby quashed accordingly.
Since it is obvious that the Interested Party is “married” to another man having born him a child, I invoke Order 55 r 2 of CI 47 and grant custody of the 2 children of the household to the Applicant. The Interested Party shall be given reasonable access to them. From the formulation of rule 2 of Order 55, the court is not limited to orders that it may make in an application for judicial review to which the applicant expressly seeks. It may make any of the orders listed in the rule that justice of the matter requires. This position is in accord with the view expressed by Gbadegbe JSC in a paper, Practice and Procedure in Judicial Review delivered at the Judicial Service Training Institute (JTI), Accra in an induction course organized for newly appointed Justices of the High Court. I make no order as to costs.